TMI Blog2000 (10) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... branded beverages waters such as name Coca-cola, Limca, Citra etc. The appellant had claimed classification of these under heading 33.10 of the tariff. This classification was approved initially. However, subsequently notice was issued, proposing the classification of the goods under heading 21.08. The Assistant Commissioner, who adjudicated on the two notices issued (for the periods August, 1995 to January, 1996 and February, 1996 to 6th March, 1996) held that the goods were rightly classifiable under heading 33.02 and dropped the demands for duty as the clearances during this period. The department appealed this order. Disposing of this appeal, the Commissioner (Appeals) held that the goods were correctly classifiable under heading 21.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scope of the appeal filed before him. The department itself has earlier taken the stand that similar preparations are classified under heading 33.02. This stand is clear from the Tribunal's decision in Pepsi Foods Ltd. v. CCE - 1999 (108) E.L.T. 461 and the unreported decision in Pepsi Foods Pvt. Ltd. v. CCE in appeal E/5291/92C. 4.The Departmental Representative's answer is this. The goods are edible preparations within the meaning of Note 12 to Chapter 21. The reference to the heading 21.08 to edible preparations "not elsewhere specified or included" has to be read to mean preparations not included or specified elsewhere in Chapter 21. Since the goods are edible, and heading 33.02 covers both edible as well as non-edible preparation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding. He has found that the goods are specifically covered by the terms of heading 3302.10 and not found it necessary to go beyond this. The Commissioner (Appeals) has not favoured relying upon the holding that dispute in classification has to be resolved on the material available on the basis of the tariff itself, that being the law of the land. He, however, overlooks the judgment of the Supreme Court in the case of CCE v. Woodcraft Products Ltd. 1995 (77) E.L.T. 23 that since the tariff is based upon [HSN] the reference to the [HSN] in considering the scope and the meaning of the tariff heading would be justified. As we have indicated, both headings are based upon the Explanatory Notes. 7.The Explanatory Notes exclude from classificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere in the tariff. If it were the intention to limit the specification or inclusion in the chapter, the chapter heading would have said so, as it does for example in headings 84.85, 84.75, 84.85. All these three headings speak of goods not specified or included elsewhere "in this chapter". In the absence of these words, it is not permissible to read them into the words of heading 21.08. 9.The Explanatory Notes, to which we have already referred earlier, to heading 21.06 clearly excludes preparations for the food or drink industry based on odoriferous substances from that heading and put them under heading 33.02. The corresponding headings in the tariff are 21.08 and 33.02. It is not possible for us to agree that the condition in heading 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that sub-heading which would justify this view. As we have noted, sub-heading 10 of heading 3302 is for the goods described in the tariff heading "of a kind used in the food and beverage industry". There is nothing in these words to suggest or to justify an inference that it is only goods which can be put to more than one use which could be classifiable under this heading. The Commissioner, in his order, does not give any reasons for his conclusion nor was the Departmental Representative, who echoed that reasons, were able to give any reasoning. The two decisions of the Tribunal in Pepsi Foods Ltd v. CCE and the unreported decision cited by the appellant indicate that the department itself had claimed classification of Mirinda, Lehar 7Up ..... X X X X Extracts X X X X X X X X Extracts X X X X
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